Divorce Proceedings in India

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The rate of divorces in India has been increasing day by day as compared to past few decades ago. With changing time the major boost for the number of divorces have been mainly because of an individual's increased freedom of thought and expression and slowly fading social and cultural bindings. Divorce proceedings in India involves a long and complicated process, taking over a year to complete. The process is governed by Indian law and the rules differ according to different religion of the couple like Hindus (including Sikhs, Jains and Buddhists), Muslims and Parsis.

The formal proceedings of divorce starts with filing a petition for divorce at the respective court of law. The types of divorce may vary from uncontested/ mutual consent divorce to a contested divorce. The former type is much easier and faster to complete compared to a contested divorce, which is both time consuming and expensive.

Acts that govern the Divorce Proceedings in India

• The Foreign Marriage Act, 1969
• The Special Marriage Act, 1956: Applicable for inter-community marriages and Civil marriages
• The Parsi Marriage and Divorce Act, 1936: Applicable for Parsis
• The dissolution of Muslim Marriage Act, 1939: Applicable for Muslims
• The Hindu Marriage Act, 1955: Applicable for Hindus, Buddhists, Sikhs and Jains
• The Indian Divorce Act, 1869: Applicable for Christians
• The Native Converts Marriage Dissolution Act, 1866: Applicable for Hindus to appeal for a divorce if a spouse converts and becomes a Christian

Grounds in Divorce Proceedings in India

Chronic Disease

• This comprises of physical illness, mental illness and sexually transmitted diseases
• Parsis and Christians do not permit divorce for a sexually transmitted disease or leprosy, but other communities allow divorce for these reasons

Impotency

• This implies the physical inability of the couple to complete the marriage or the denial of one partner to do so
• Sterility is interpreted as non completion of marriage if the other spouse is unaware of this condition prior to the marriage

• This comprises of mental and physical abuse and neglect
• The manner in which this law is applied indicates that men and women are estimated by varying standards

• This ground is related to three major parts -
  • Disruption of cohabitation
  • Absence of just or reasonable cause
  • A blend of the above two points for three years, after which the abandoned partner may file a petition
• The offending partner has an obvious objective of remaining permanently away from the other

Adultery

• This is defined as the voluntary sexual intercourse of a married person with another person who is not the wedded partner of the offender
• Although, this law is equal for men and women, adulterous women are dealt with more harshly than adulterous men

Divorce by Mutual Consent

The process of obtaining a mutual divorce is simpler when compared with a contested divorce procedure. In India, if the spouses can resolve all sorts of disputes (like those of child custody, maintenance etc) and reach an agreement, then they can attempt this kind of divorce.

The Hindu Marriage Act, Section 13B specifies that a couple can file a mutual divorce only after they have resided apart from each other for minimum one year. Both the partners must jointly state that they are unable to continue the marital relation due to some unavoidable condition. Both the spouses must accede with one another voluntarily to dissolve the marriage.

• The First Motion: This term implies that both the husband and the wife have filed for a mutual divorce
• The Second Motion: After the date of filing the First Motion, when a period of six months has been elapsed, the couple can file the second motion
• This duration of six months has been provided to the couple for reconsideration of their marriage
• Let us assume that one of the partners has withdrawn the petition
• Then, the court begins an enquiry
• Now, if the concerned side does not accede to offer the consent, then the court does not have a right to pass the divorce judgment

Contested Divorce

Almost 95% divorce cases filed in India are contested presently. Since the couple fails to reach an agreement in issues of child custody, support, alimony, property and assets division, the court intervenes and makes decisions for them. One of the spouses files the petition for divorce at the court stating the grounds for divorce. The grounds are mentioned in the acts passed out separately for different Indian religions as mentioned above. A 'vakalatnama' has to be signed by the spouse to authorize the lawyer fight the case on behalf of him/ her. The couple needs to submit copies of necessary documents like Income Tax statements, Salary slips, documents related to property and assets, etc. Following this, the court sends a notice and a copy of petition by registered post to the former spouse with a specified date to appear in the court. It takes more than few months to years to get the divorce finally based on several factors. During hearing or trial, the spouse may need to provide relevant evidence for the ground of divorce to get a ruling in favor of him/ her.

To conclude, the divorce proceedings in India involves a long phase of emotional and financial turmoil. It is always advisable to consult an experienced and good lawyer to help complete the formalities in a proper way. An individual considering or going through a divorce must be well prepared mentally to confront all negative situations arising out of emotional, social and economical bindings.

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